Kitzing v Fuller (2016)

Summary

It was not appropriate to grant the claimant an interim injunction restraining the defendant landowner from interfering with her sporting rights, which primarily involved the shooting of game, over his land: there was no real risk that the defendant would embark upon or resume any of the activities which the claimant was seeking to enjoin.

Facts

The claimant sought an interim injunction to restrain the defendant from interfering with the sporting rights which she enjoyed over his land.

The defendant had acquired the land some 13 months ago. The transfer stipulated that the land was subject to the claimant's sporting rights, which primarily involved the shooting of game, and to "the right to preserve and rear game for normal shooting purposes". The claimant's case was that since the defendant's acquisition of the land he had undertaken extensive clearance of the ground cover and trees on the land, reducing the ability of the woodland to hold game and reducing the areas of the shoot in which her rights could be effectively exercised. The defendant's conduct was said to constitute an unlawful infringement of her rights and to be a trespass and/or a nuisance. She sought an interim injunction restraining him from taking any steps which unlawfully interfered with her rights, from felling trees and from removing ground cover.

Held

The first issue was whether there was a serious issue to be tried. There was just about a seriously arguable case that there had been an actionable interference with the claimant's rights. On an application for an interim injunction, it was not appropriate for the court to embark upon a detailed exposition of the circumstances in which acts of normal estate management by the owner of land burdened, not simply by shooting rights, but also by rights to "preserve and rear game for normal shooting purposes", might constitute an actionable interference with those rights. On the present state of the authorities, it was at least fairly arguable that acts carried out in the normal estate management of one's land might be actionable at the suit of the holder of rights of shooting, and of preserving and rearing, game if they substantially changed the character of the land so as to render it materially less fit for the purposes of shooting and preserving and rearing game for shooting purposes. However, it was not appropriate to grant an interim injunction. There was no proper basis for thinking that there was any real risk that the defendant would embark upon or resume any of the activities sought to be enjoined. He had said that he would not do so and there was no reason to disbelieve him. His words were supported by his actions. Moreover, the terms of the injunction sought would be oppressive to him; they would leave him not knowing what he could or could not do on his land and with a sword of Damocles hanging over his head, capable of being wielded by someone who, on the evidence, was not well disposed towards either him or his occupation and enjoyment of his considerable residential estate. The defendant had genuine concerns that if an order was made enjoining him from certain activities, with the threat of committal to prison for a breach, that would have a stifling effect on his enjoyment of land for which he had paid a considerable sum of money (see paras 25, 27-28, 30-31 of judgment).